Intersection of law and social media is uncharted territory

It’s not just regular schmos who post dumb things on social media sites such as Facebook and Twitter.

Lawyers and judges can be just as ignorant of the pitfalls of using social media too freely.

There’s the story of a judge in South Carolina who started using Facebook to communicate with a lawyer who was trying a case before him. They exchanged information that was considered to be an ex parte, or private, communication, which is forbidden between judges and lawyers in cases. The judge was reprimanded.

Then there’s the prosecutor in Minnesota who used Facebook to make a derogatory remark about Somalians. Turns out she was prosecuting a Somalian at the time. The defendant’s attorney tried to get the conviction in the case reversed on appeal. Although the appellate court said the attorney had acted unprofessionally, the conviction was upheld, because there was no proof that jurors in the case had seen her post.

And there’s the public defender in Illinois who blogged about her client: “This stupid kid is taking the rap for his drug-dealing dirtbag of a brother because he is no snitch.” She was fired and suspended from practicing law for 60 days.

As they are for individuals and businesses, the Internet and social media can be high-risk tools for lawyers and judges.

“We tell lawyers to be careful, especially during trials, not to use social media too much. Some lawyers and judges don’t think,” attorney Carole Levitt says.

With her husband Mark Rosch, Levitt operates Internet for Lawyers Inc. in Rio Rancho, a consulting firm they founded in 1999.

While the use of social media presents ethical challenges for companies, employees, lawyers and judges, the subject is a moving target. There have been few court cases or legal opinions on social media issues, experts said.

In the legal profession, there have only been a handful of nonbinding ethics opinions around the country in recent years regarding lawyers’ use of social media, and they’re conflicting.

A 2009 opinion by the Philadelphia Bar Association held that lawyers cannot access private Facebook pages to “friend” a witness in a case to get information, Levitt said.

But the New York City Bar Association said in a 2010 opinion that it’s OK for a lawyer to friend a witness on Facebook, as long as she uses her real name, Levitt added.

When it comes to selecting jurors, Facebook and other social media sites can help lawyers.

Prospective jurors might lie on court questionnaires. But a check of their Facebook pages might reveal a political or other bias that they didn’t list on the questionnaire, Levitt added.

Then there’s the issue of whether a lawyer can advise a client to delete social media postings that might be considered incriminating.

“There’s an ethical rule called ‘fairness to opposing parties,’ which says that lawyers should not obstruct access to evidence,” Levitt says, adding that there have been no ethics opinions on the matter.

Employees’ rights, challenges

Social media has benefits and drawbacks for both employer and employee, says Santa Fe attorney Marshall Martin of the Comeau Maldegen Templeman & Indall firm.

Employees have free speech rights and, on their own time, can post derogatory comments about employers, according to a February 2010 complaint filed by the National Labor Relations Board against a Connecticut ambulance service.

But those free-speech rights can also hurt employees.

“An employee can call an employer a jerk and the employer can’t do anything, but an employer can get on Facebook and find out personal information about an employee,” Martin says.

For example, an employee might call in sick several days in a row. But he might post on his Facebook page that he’s been drunk four consecutive nights.

That’s information an employer can use.

“It’s really a two-edged sword. I see something on it every day,” Martin adds.

The NLRB case is the benchmark case regarding employees’ private use of social media, says Levitt’s husband, Mark Rosch.

But employees still have to be careful abut their postings.

“Social media has a broadcast quality. Instead of complaining to one or two people, you have the ability to complain to everybody at the same time, and anybody can find it,” Rosch says. “By posting content, you’re making it available potentially to everyone in the world with an Internet connection.

“Anybody would be well advised not to post anything on a social network that they would not send to their mother or grandmother.”